TaxTMI 
TaxTMI 
2022 (5) TMI 5
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....ons, directing the respondent Sub-Registrar to register the Deed of Conveyance in favour of the petitioner dated 11.03.2022 (at ANNEXURE-P hereto) and further pleased to direct the respondent - Mamlatdar to mutate entry of such registered sale deed in favour of the petitioner fro the properties in question; C. During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of the impugned order dated 19.01.2022 passed by the respondent - Sales Tax authority (at ANNEXURE - H hereto) as well as Entry No.15744 mutated in the revenue record for the properties in question (at ANNEXURE - I hereto) and further be pleased to direct the respondent Sub-Registrar to register the Deed of Conveyance in favour of the petitioner dated 11.03.2022 (at ANNEXURE-P hereto); D. Pass any such other and / or further orders that may be though just and proper in the facts and circumstances of the present case." 2. The subject matter of dispute in the present litigation is a parcel of land bearing Revenue Survey No.1521 (Old Revenue Survey No.785/1/p/1) situated at Mouje: Rajpur, Ta. Kadi, Dist: Mehsana. This land ....
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....in favour of the Bank of Baroda and the Bank in exercise of its powers under the SARFAESI Act, was entitled to auction the subject land and recover the requisite amount towards the dues incurred by the Company. 9. The pivotal issue raised in the present writ-application is no longer res-integra in view of the two pronouncements of this Court as under:- (1) Bank of India vs. State of Gujarat and others [Special Civil Application No.13863 of 2014; decided on 21st January 2020]. (2) Kalupur Commercial Co-operative Bank Ltd. vs. State of Gujarat [Special Civil Application No.17891 of 2018; decided on 23rd September 2019]. 10. We quote the relevant paragraphs of the judgment rendered in Kalupur Commercial Co-operative Bank Ltd. (supra) as under: "54. In view of the aforesaid discussion, We have no hesitation in coming to the conclusion that the first priority over the secured assets shall be of the Bank and not of the State Government by virtue of Section 48 of the VAT Act, 2003. 55. In the result, this writ application succeeds and is hereby allowed. The impugned attachment notice dated 22.01.2018 (Annexure-A) and the impugned communication dated 19.04.2018 (Annexure-B) is....
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...."first charge" in the Central Excise Act and the Customs Act, the claim of the Central Excise Department cannot have precedence over the claim of secured creditor, viz., the petitioner Bank. (iv) In the absence of such specific provision in the Central Excise Act as well as in Customs Act, we hold that the claim of secured creditor will prevail over Crown's debts." In view of our above conclusion, the petitioner UTI Bank, being a secured creditor is entitled to have preference over the claim of the Deputy Commissioner of Central Excise, first respondent herein." (emphasis supplied) 42. This Court, while dismissing the Civil Appeal No.3627 of 2007 filed against the judgment of the Full Bench, vide order dated 12.09.2009 held as under: "Having gone through the provisions of the Securitization Act, 2002, in light of the judgment of the Division Bench of this court in the case of Union of India vs Sicom Ltd. & Anr., reported in 2009 (1) SCALE 10, we find that under the provisions of the said 2002 Act, the appellants did not have any statutory first charge over the property secured by the respondent bank. In the circumstances, the Civil Appeal is dismissed with no ord....
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....ue for consideration was "whether tax dues recoverable under the provisions of The Central Excise Act, 1944 have priority of claim over the claim of secured creditors under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002" held that: "Considering the language of Section 35 and the decided case law, in our opinion it would be of no effect, as the provisions of SARFAESI Act override the provisions of the Central Sales Tax Act and as such the priority given to a secured creditor would override Crown dues or the State dues. In so far as the SARFAESI Act is concerned a Full Bench of the Madras High Court in UTI Bank Ltd. v. Deputy Commissioner of C. Excise, Chennai-II has examined the issue in depth. The Court was pleased to hold that tax dues under the Customs Act and Central Excise Act, do not have priority of claim over the dues of a secured creditor as there is no specific provision either in the Central Excise Act or the Customs Act giving those dues first charge, and that the claims of the secured creditors will prevail over the claims of the State. Considering the law declared by the Apex Court in the matte....
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.... the SARFAESI Act, 2002, the Secured Creditor will have a First Charge on the Secured Assets. Moreover, section 35 of the SARFAESI Act, 2002 inter alia, provides that the provisions of the SARFAESI Act, shall have overriding effect on all other laws. It is further pertinent to note that even the provisions contained in Section 11E of the Central Excise Act, 1944 are subject to the provisions contained in the SARFAESI Act, 2002. 49. Thus, as has been authoritatively established by the aforementioned cases in general, and Union of India vs SICOM Ltd.(supra) in particular, the provisions contained in the SARFAESI Act, 2002, even after insertion of Section 11E in the Central Excise Act, 1944 w.e.f.08.04.2011, will have an overriding effect on the provisions of the Act of 1944. 50. Moreover, the submission that the validity of the confiscation order cannot be called into question merely on account of the Appellant being a secured creditor is misplaced and irrelevant to the issue at hand. The contention that a confiscation order cannot be quashed merely because a security interest is created in respect of the very same property is not worthy of acceptance. However, what is required to....